Legitimacy

Convergent threads often seem like coincidences when they show up together. You are working on an idea, and a colleague says something of great use to you, further discussion proves you have been having similar thoughts. A theory awaits a breakthrough, something happens that provides it. When the subject is torture, it seems that many threads lead to legitimacy.

Torture and Democracy

That's the title of a detailed study of torture by Darius Rijali. George Hunsinger, who teaches at Princeton Theological Seminary, and founded the National Religious Campaign Against Torture (NRCAT), calls it, "quite simply the most authoritative study of torture ever written, " in his review in the upcoming July edition of Theology Today. According to the review, the book contains, in addition to a comprehensive catalog and history of techniques, an analysis of the relationship between torture and democracies. The results are quite ominous: the torture fails to generate the information it was started to generate, and the corruption it entails, and the creation of the class of people who have been corrupted, is a threat to a democracy. As Dr. Hunsinger puts it,

When politicians first heard of the torture, they denied it happened, minimized the violence, and called it ill treatment. When the evidence mounted, they tried a few bad apples, disparaged the prisoners, and observed that terrorists had done worse things. They claimed torture was effective and necessary, and counterchallenged that critics were aiding the enemy. Some offered apologies, but accepted no responsibility. Others preferred not to dwell on past events.

The torture would continue, yielding no reliable information, while the democracies remained mired in war against weaker enemies. "Soon," states Rejali, "politicians had to choose between losing their democracy and losing their war. That is how democracies lose wars." It is also, we might fear, how they lose their democracies.

Darius Rejali also wrote a pair of pieces for Salon, after the Abu Ghraib scandal broke in 2004. He outlined the fall of the French 4th Republic to the tortures during the Battle of Algiers. Dr. Rejali in recounting the history of torture in Torture's Dark Allure (Salon), mentions two ways in which torture affects democracies: it gets legitimized against whole classes of people (he mentions the Greeks and Romans using it against slaves and 'lesser citizens'), or it corrupts a government that legitimizes its use, by creating an unaccountable executive (the Italian city states) or military (the French 4th republic), that brings down or takes over the government.

Curiously, he says that the first option, circumscribing torture to an entire class of people, is not available to modern states. That leaves the second, with its prediction against any modern state that uses torture. Then, he discusses 'clean torture', to which Dr. Hunsinger responds,

A paradoxical point is made about the importance of public monitoring. On the one hand, it has recently led to the adoption of torture techniques that are difficut to detect. Torture that leaves no marks – like sleep deprivation, waterboarding, long-time standing and subjection to long periods of extreme hot or cold – are no less devastating to the victims (and the perpetrators) than torture that leaves visible scars, but because they are stealthy, they are now preferred by the democracies that resort to them. (Rejali unfortunately dubs this development "clean torture," a repugnant term that one hopes will fail to catch on.)

The threads leading to legitimacy perhaps speak to a new implementation of both outcomes in the current context.

The Tale of the Red Crescent

In 2005, the Third Additional Protocol to the Geneva Conventions added the Red Crystal to the Red Cross and the Red Crescent as symbols of neutrality under the Conventions, ending a five year dispute that originated with the petition to use the Magen David Agom as an alternate symbol. It's interesting that the dispute centered on religious symbolism, and got very heated at times. The modern conception seems to be that the Red Crescent is used by Muslims because they objected to the Christian religious symbol (the Red Cross) being used. Presumably, the desire to use the Jewish religious symbol was from similar sentiment. That lead to wrangling during which shrieking headlines by some proclaimed that groups wanted a "red Nazi swastika"!

The red swastika had been proposed, but not as a Nazi symbol, and therein lies the strangeness of the whole debate. Because to large parts of the world, the swastika is a religious symbol that has nothing to do with whether or not it was appropriated by the Nazis for a brief period of history, it having been used since neolithic times. A religious symbol was associated with a state power that was repugnant and the enemy of others. It turns out that that is why the Red Crescent was also adopted, because, to a High Party at the time, (1870's), the cross was the symbol of an enemy of the Ottoman Empire in war, that is, the Crusades. When the cross and crescent were formalized in 1929, neither had been adopted for their religious connotations: one was adopted as the reverse colors of the flag of the homeland of the founder of the movement, and one as an alternative to adopting the symbol of a former enemy in war.

In the course of researching this, I discovered that much of the debate over symbols centered on legitimacy, and then, reading through the documents at the ICRC web site, and searching for current opinions of them, discovered that the Geneva Conventions are at least as much about conferring legitimacy as about anything else, aside from their obvious legally binding virtues. The Reagan administration did not adopt the 1977 First Additional Protocols out of fear that it would legitimize terrorists, most of the debate leading to their signing was about fears that they would legitimize various insurrections and rebellions. The recommendations to President Reagan had been that they would legitimize the Palestinian Liberation Organization, which was not unfounded, given that the PLO had been invited to participate in the talks in order to legitimize the opinions with respect to liberation groups.

The mantra recited about terrorists is that they do not wear a fixed emblem and carry their weapons in plain sight, which is supposed to de-legitimize them with respect to the Third Convention on prisoners of war. In point of fact, it actually, at the time of the treaty, probably referred to 'spies and saboteurs' whose punishment for illegitimacy was to be held incommunicado, not denied the entire treaty. The treaties were, after all, the byproduct of multiple European wars, not guerrilla struggles that became more common with decolonization.

Upholding the Law by Withholding the Law

Philippe Sands, in The Torture Team, has a curious chapter (chapter 5) about Douglas Feith, in which Feith advocates that upholding the Geneva Conventions requires withholding their protections (p. 33). It is an argument based on incentives. If a party does not obey the Geneva Conventions, then if their soldiers who are hors de combat are granted protection, it removes the incentive for that party to adhere to the Conventions, which is the point of the Conventions in the first place. Consequently, by denying Geneva Conventions protections to the Taliban and al Qaeda, even, apparently, Common Article 3, one is strengthening the power of international humanitarian law to be a humanitarian force in war.

But Mr. Feith has a longer history with the Geneva Conventions than that, as Mr. Sands mentions, and as is readily available information on the Internet. The author of the advice to President Reagan urging him to withhold sending the First Additional Protocol of 1977 to Congress for ratification was Mr. Feith. The question was, of course, legitimacy. Terrorists, specifically the PLO, would gain legitimacy under the protocols, because they would need to be treated as prisoners of war if captured. Consequently, the reason the Conventions contain no explicit language for dealing with soldiers who do not display distinctive marks and carry weapons openly other than spies and saboteurs, the reason that the Geneva Conventions cannot apply to them because they have not agreed to abide by them with signatures, is because they are not allowed to, because they are illegitimate. No incentive can change that, no matter how much they might desire the protection of the Conventions, the same voice that argues that denial of protection is an incentive to abide, refuses their ability to accede. In a very simple way, they are not entitled to protections because they are illegitimate, not because they do not abide.

Legitimacy and Rijali's Consequences

And so, we find that legitimacy is the key to understanding the modern consequences of torture. To Dr. Rijali's first category, the whole class of slaves and lesser citizens, corresponds the notion of a terrorist, or terrorist state. People who do not have the right to be protected from torture, and cannot acquire that right. As is frequently pointed out, terrorism is a tactic. The label terrorist, however, is the modern nation-state's concept of an illegitimate. The terrorist is at once a military target, and subject to peacetime proscriptions against murder. A terrorist is not a legitimate soldier, but is not a legitimate civilian, i.e. criminal, either. In very real terms, a terrorist is an outlaw. A person who has no rights.

This is not an argument in favor of those who have commit heinous violent acts. It is an argument that the designation has evolved into a terminology for someone who is an enemy of a nation, and is without rights upon capture.

Legitimacy is also the key to Dr. Rijali's second category, and his characterization of 'clean torture'. An interrogation technique is still legitimate if it is not torture. As Dr. Rijali himself recounts (Torture and Democracy, ch. 1), torture through most of its history meant physical torture. Psychological techniques are newer, they are cleaner, and the collective unconscious, to borrow from Carl Jung, has not kept up in its archetypes. In the public mind, torture is still associated with loud cries of pain, with physical injury, with the rack and the white hot poker. By creating techniques that lack the attributes needed for the commonly held frame, a method for bypassing state legitimization of torture exists for a democracy. Democracies are answerable to their people, and if the people do not believe a technique is torture, then its cruelty is masked. No need to conceal torture by battering a person's feet, when you can make it invisible by battering the mind.

But the effect on the torturer is the same, no? Because the torturer is the one who comes to love the violence, the brutality, the control. And it is the league of torturers, their enablers, and their supporters, who bring down democracies, who strengthen executive branches, who challenge 4th Republics. They are the minds for whom there is no clean torture.